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Lawmaker Yamada Explains Implications of Proposed Copyright Guidelines on Cosplay Income

After it was reported that the Japanese government is considering rules that will allow copyright holders to regulate cosplayers for income earned from cosplay activity, House of Councillors member Tarō Yamada appeared on Abema News to explain the implications of the potential laws on cosplay activity.

Yamada said, "There are many people hearing this news who may feel worried that this will have bad implications for cosplay and derivative works. At the very least, I, as one of the responsible persons in the Liberal Democratic Party, will do what I can to protect fan culture, so I hope that you can rest easy." He also emphasized that no rules will be decided without consultation with members of the party, including himself.

Yamada went on to clarify copyright laws as they currently exist in Japan. "First of all, people generally misunderstand this, but whether it's commercial or non-commercial has no bearing on copyright. Copyright is simply an assertion of what we call personality rights. On the other hand, what does relate to the issue of derivative works is how creators can collect money in the age of mass reproduction over the internet. There are aspects of the current legal system that are out of step with the digital age.

"If you were to create the masks in Kamen Rider as they appear in the series and sell them, there's a legal precedent for deeming it illegal, but a personal cosplay in itself wouldn't be accused of copyright violation. If it's something like the pattern of the clothes worn by Demon Slayer's Tanjiro, which have general utility value, then it wouldn't have copyright attached to it. However, if you were to take things like the sword and belt and make them look exactly like a photo of the author's work, then there is a possibility that it could be accused of copyright violation. This combination of things is what makes the issue of drawing the line very difficult."

Yamada addressed the Maricar scandal in this context. "They took official Mario costumes and lent them out for free, which is a violation of lending rights. Furthermore, they uploaded photos and videos online for promotional purposes, which was also a violation of public transmission rights. However, the Intellectual Property High Court did not make a decision on whether it was copyright infringement. Instead, they ruled that it was unlawful under the Unfair Competition Prevention Act​ – in other words, that it was interfering with Nintendo's business. I suspect that even the Intellectual Property High Court could not make a decision because the issue of copyright is an extremely difficult political issue. Even the courts find it difficult to make such decisions."

When the popular cosplayer Haru Tachibana asked him about distinction between selling photo books vs posting on social media, he once again pointed out that it was not a clear-cut issue from a legal perspective. "If your cosplay included things that were acknowledged under copyright and you posted the photos on Twitter without obtaining permission from the intellectual property owner, then there is a possibility that it could be deemed a violation of public transmission rights. Also, even if you got permission to post the images on Twitter, the act of retweeting them or otherwise spreading them could also potentially be seen as a violation of public transmission rights. At the same time, if your face or other easily distinguishable part of you were to be spread about willy-nilly, then there is a possibility that it could be a violation of the rights to the usage of your likeness.

"It's a very inscrutable topic, but it's not just an issue of the cosplayers themselves violating copyright, but also an issue of what happens in the case of improper distribution. On top of that, if the rights owners say it's okay to use their work, but then later decide they want to charge a fee for it, when happens then? Within the party, there are discussions about the necessity of setting up rules for those aspects as well."

The Japanese government perceives cosplay as a valuable aspect of Japanese culture. Last year, professional cosplayer Enako was appointed as a Cool Japan ambassador. The government is currently seeking opinions from both copyright holders and cosplayers such as Enako, but there is no proposed legislation as of yet.

"In the current Japanese legal system, copyright violation is the type of crime which requires a formal complaint from the victim in order to prosecute, so you could say that Japan is fairly permissive by global standards. That said, since we don't have legislation in place for aspects like online streaming, there are loopholes and grey zones. That is what I believe Minister Inoue was talking about. Our current legal system is predicated on the fact that creative ownership rights exist as a right under natural law even without putting each and every aspect into clear writing. However, Japan is part of the Berne Convention, which was established in the 1800s, so the fact of the matter is that unless the other countries that are part of the agreement give their consent, then this country can't be the only one that changes.

"Given those circumstances, then for our country it becomes a matter of ensuring that the work of creatives is circulated in an appropriate manner, and that includes derivative works as well. Generally speaking, creators are happier to see those works get circulated rather than not, and we would also like to see them get some returns out of it. However, if we were to require everyone to get individual consent, it would raise questions about who would be the right person to speak to, and if we were to group all the permissions under one system, it would start debates over how to split the differences, as in the case with the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC). That, too, is a rather difficult issue."

Currently, cosplayers can earn income from cosplaying through such methods as subscription or membership services, compensation for appearances at events such as conventions, or selling their costumes. The question of whether cosplay violates copyright law by infringing on reproduction or adaptation rights has been in discussion by many within and outside the cosplay community for years.

A member of the Cabinet Office handling intellectual property strategy told the news outlet J-Cast that the government is aiming for rules that will create "an environment where people can participate in cosplay with peace of mind." They claim not to wish to restrict fan activities, and endeavor to create rules that "everyone can accept."

Minister Inoue said at a Cool Japan strategy press conference on Friday that he is thinking of establishing a plan within the fiscal year, which ends on March 31. He also emphasized the importance of "an environment where cosplay can be enjoyed with peace of mind."

Thanks to Dan Kanemitsu for the tip.

Sources: Abema Times, J-Cast, Kyodo News